Madras High Court
R.S.Sekar vs Saminathan ... 1St on 5 November, 2024
2024:MHC:3748
S.A.No.594 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 12 / 08 / 2024
JUDGMENT PRONOUNCED ON : 05 / 11 / 2024
CORAM
THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
S.A.NO.594 OF 2018
R.S.Sekar ... Appellant / Respondent /
Plaintiff
Vs.
1.Saminathan ... 1st Respondent / Appellant /
1st Defendant
2.Sub Registrar
Arni, Arni Town,
Tiruvannamalai District. ... 2nd Respondent / 2nd Respondent /
2nd Defendant
PRAYER: Second Appeal is filed under Section 100 of the Code of Civil
Procedure, 1908 praying to set aside the Judgment and Decree dated June
20, 2018 passed in A.S.No.34 of 2017 on the file of Additional District
Court (Fast Track Court), Arni, whereby the Judgment and Decree dated
August 10, 2012 passed in O.S.No.92 of 2008 on the file of Subordinate
Court, Arni, Tiruvannamalai District was reversed.
For Appellant : Mr.A.Gouthaman
For Respondent-1 : Served – No appearance
For Respondent-2 : Mrs.R.Anitha
Special Government Pleader
JUDGMENT
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This Second Appeal is directed by the unsuccessful plaintiff
before the First Appellate Court, assailing the Judgment and Decree dated
June 20, 2018 passed in A.S.No. 34 of 2017 on the file of ‘Additional
District Court (Fast Track Court), Arni’ ['First Appellate Court' for short],
whereby the Judgment and Decree dated August 10, 2012 passed in
O.S.No. 92 of 2008 on the file of ‘Subordinate Court, Arni,
Tiruvannamalai District’ ['Trial Court' for short] was reversed.
2. Hereinafter, for the sake of convenience, the parties will be
denoted as per their array in the Original Suit.
Plaintiff’s Case in Brief:
3. In the Plaint it is averred that the first defendant entered
into a Sale Agreement on January 17, 2007 with the plaintiff, agreeing to
sell his lands measuring roughly 2 Acres in Survey Nos.135/6 and 144/8 at
the rate of Rs.1500/- per Cent and accordingly received an advance of
Rs.25,000/- as part payment of the total sale consideration. The plaintiff
blindly believed the first defendant as to the extent of the said lands. The
period of performance was agreed to be within 60 days from the date of
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Sale Agreement.
3.1. Further averred that, later when the plaintiff approached
the first defendant expressing his readiness and willingness to pay the
remaining sale consideration and called upon him to present the Revenue
Records pertaining to the said lands, the first defendant refused to do so.
However, the plaintiff got the Revenue Records through some other mode
and to his surprise, he learnt that the said lands measure only 1 Acre 36
Cents. Then, the plaintiff along with one Sampath and one Rajendran,
approached the first defendant on February 21, 2007 expressing his
readiness and willingness to pay the remaining sale consideration for the
extent of 1 Acre 36 Cents alone instead of 2 Acres at the agreed rate of
Rs.1500/- per Cent. The first defendant responded evasively.
3.2. Though the plaintiff was always ready and willing to
perform his part of the Sale Agreement and approached the first defendant
multiple times, the first defendant always refused. The first defendant was
planning to sell the said lands to third parties. Hence, the Suit for specific
performance of the Sale Agreement, and permanent injunction restraining
the first defendant from alienating the Suit Property in favour of third
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parties as well as restraining the second defendant from registering the Suit
Property in favour of anyone else. Also for the alternative relief of refund
of advance amount.
First Defendant’s Case in Brief:
4. The first defendant filed Written Statement, wherein it is
averred that Item No.2 of the Suit Properties was purchased vide Sale Deed
dated December 14, 1979 out of sale proceeds of ancestral property. Item
No.1 was purchased through Sale Deed dated March 14, 1990 out of joint
family funds. Hence, the Suit Properties are joint family properties of the
plaintiff, his two sons and two daughters.
4.1. It is further averred that he never executed any such Sale
Agreement voluntarily out of free consent. The plaintiff, a realtor, brought
the first defendant to thatched shed of one Chandrasekaran, the first
defendant’s neighbouring land owner, on a false pretext that surveyor has
come to survey the neighbouring lands. Then the plaintiff demanded the
first defendant to sell the Suit Properties to him, and the first defendant
refused. Then plaintiff offered the first defendant a spiked drink which
rendered him incapable of comprehension and forcibly obtained his
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signature in a white paper whose contents were unknown to him, and
thrusted him with Rs.25,000/-.
4.2. The very next day, upon learning about the incident, the
sons and daughters of the first defendant intimated the plaintiff that the
agreement is void for lack of free consent, and even otherwise, the Suit
Properties being joint family properties, the agreement would not bind
upon their shares. On such intimation, the plaintiff agreed to accept the
advance amount back and directed to give the same to his friend -
Pichandi, President of Ariyapady Village. Accordingly, the advance
amount was given to Pichandi, but the same was later returned by Pichandi
on the pretext that his relationship with the plaintiff has become uncordial.
Thereafter, while the first defendant was always ready to repay the
advance amount forcibly given to him, the plaintiff was always evasive. In
such a scenario, this Suit has been filed mischievously and it is liable to be
dismissed.
Second Defendant’s Case in Brief:
5. The second defendant filed Written Statement wherein it is
averred that the second defendant does not know about the alleged Sale
Agreement dated January 17, 2007. Second defendant is not a necessary
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party. Further that, it is his statutory duty to register the documents if they
are duly presented along with the correct stamp duty and registration fee.
The Suit filed with a prayer to restrain the second defendant’s statutory
duty is not maintainable and liable to be dismissed.
Trial Court:
6. The Trial Court framed issues and their translated versions
are as below:
“(i) Whether the plaintiff is entitled to the relief of specific
performance?
(ii) Whether the Suit Properties are joint family properties
of the plaintiff, his sons and his daughters?
(iii) Whether the Suit is bad for non-joinder of the sons and
daughters of the plaintiff?
(iv) Whether the plaintiff spiked the first defendant’s drink
and obtained signature in the Sale Agreement, as
alleged by the first defendant?
(v) Whether the Sale Agreement is valid in law?
(vi) To what other reliefs?”
6.1. At Trial, on the side of the plaintiff, the plaintiff was
examined as P.W.1, one Chandrasekaran was examined as P.W.2, and Ex-
A.1 - Sale Agreement was marked. On the side of the first defendant, the
first defendant was examined as D.W.1 and Ex-B.1 to Ex-B.3 were
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marked. On the side of the second defendant, no witness was examined
and no document was marked.
6.2. Upon hearing both sides and considering the oral and
documentary evidence, the Trial Court concluded that the Ex-A.1 - Sale
Agreement is true and valid; that the Suit Properties are not joint family
properties and hence, the Suit is not bad for non-joinder of necessary
parties; that the defence of intoxication, coercion and undue influence have
not been proved. Accordingly, decreed the Suit for specific performance
with costs, impliedly refused the relief of permanent injunction qua first
defendant and dismissed the Suit for permanent injunction qua second
defendant.
First Appellate Court:
7. Aggrieved by the Judgment and Decree passed by the Trial
Court, the first defendant approached the Principal District Court,
Tiruvannamalai by way of an appeal under Section 96 of the Code of Civil
Procedure, 1908 in A.S.No.2 of 2014. The said appeal was later transferred
to the file of First Appellate Court and renumbered as A.S.No.34 of 2017.
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7.1. The First Appellate Court upon hearing both sides and
analysing the oral and documentary evidence, concluded that Ex-A.1 - Sale
Agreement was obtained under undue influence and hence it is not valid in
the eyes of law. Accordingly, it partly-allowed the appeal, set aside the
Judgment and Decree of the Trial Court and dismissed the Suit for specific
performance, while decreeing the Suit for the alternate relief of return of
advance amount along with interest at the rate of 7% from the date of Suit.
Substantial Questions of Law:
8. Aggrieved with the Judgment and Decree of the First
Appellate Court, the plaintiff preferred this Second Appeal and the same
was admitted on November 20, 2018 on the following Substantial
Questions of Law:
"(1) Whether the lower Appellate Court right in
reversing the well considered judgment and decree of trial
Court, when admittedly the plaintiff averred and proved his
readiness and willingness to perform his part of contract as per
Section 16(C) of Specific Relief Act?
(2) Whether the lower Appellate Court right in
dismissing the suit on the ground that the Court has
discretionary power under Section 20 of Specific Relief Act,
ignoring the law that the discretion of the Court is not arbitrary
but sound and reasonable, guided by the Judicial principles
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and capable of correction?
(3) Whether the lower Appellate Court right in
dismissing the suit on the ground that the Ex.Al does not seems
to be sale agreement?
(4) Whether the lower Appellate Court right in giving
finding that the nature of property is ancestral property of the
defendant and the defendant does not have power to enter in to
contract, when admittedly the suit is one for specific
performance and not for title or partition? "
Arguments:
9. Mr.A.Gouthaman, learned Counsel for the appellant /
plaintiff would argue that the first defendant, who pleaded undue
influence, has to prove the same. No independent witness was examined in
this regard. Nor any evidence was adduced. Referring to first defendant’s
evidence as D.W.1, he would submit that his own evidence belies his
theory of undue influence and his theory of joint family properties. The
plaintiff has always been ready and willing to perform his part of the
agreement. In fact, the remaining sale consideration has been deposited
before the Trial Court after the passing of the Judgment. The Trial Court
rightly appreciated the evidence and decreed the Suit for specific
performance. The First Appellate Court failed to appreciate the oral
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evidence of the first defendant in the right perspective and erred in setting
aside the Trial Court’s Judgment and Decree. The same is liable to be
interfered with. Accordingly, he prayed to allow the Second Appeal and
restore the Trial Court’s Judgment and Decree.
9.1. He would rely on the following decisions in support of
his contentions:
(i) Motilal Jain’s Case - Judgment of Hon'ble Supreme
Court in Motilal Jain -vs- Smt. Ramdasi Devi and
others, reported in (2000) 3 MLJ 202 (SC);
(ii) Hemalatha’s Case - Judgment of Hon'ble Supreme
Court in Hemalatha -vs- Kasthuri, reported in (2023)
10 SCC 725;
(iii) Lakshmi Ammal’s Case - Judgment of this Court in
Lakshmi Ammal -vs- J.Victor, reported in (1998) 1 MLJ
740;
(iv) Thilagavathi’s Case - Judgment of this Court in
Thilagavathi -vs- Subaramaniam, reported in
MANU/TN/0721/2012;
(v) Padma’s Case - Judgment of this Court in Padma -vs-
C.Nasi, reported in 2017 (5) CTC 785.
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10. Despite sufficient service, and despite the first defendant’s
name being shown in the cause list continuously on all listings, none
appeared on behalf of Respondent No.1 / first defendant.
11. Ms.R.Anitha, Special Government Pleader for Respondent
No.2 / second defendant would submit that the second defendant being a
statutory authority is obliged to register document if any presented duly
stamped and with proper registration fees as per law. Hence, the relief of
permanent injunction against the statutory authority is not maintainable.
The second defendant is an unnecessary party to the Suit. Moreover, the
Trial Court dismissed the Suit qua the second defendant and the plaintiff
did not prefer any appeal over the said finding. The First Appellate Court
also dismissed the Suit qua the second defendant. Hence, the said finding
has reached finality.
Discussion:
12. This Court has heard on either side and perused the
materials available on record in light of the Substantial Questions of Law.
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Stamp Duty
13. This Court has perused Ex-A.1 - Sale Agreement. It is
recorded on a plain white paper and the first defendant has affixed his
signature over two Revenue Stamps worth one rupee each. Apart from the
first defendant, three witnesses have signed therein. The plaintiff has not
signed Ex-A.1. As per Article 5 of Schedule I to the Stamp Act, 1899, Ex-
A.1, requires a stamp duty of Rs.20/-. At the time of filing the Suit, stamp
duty penalty of Rs.220/- was collected by the Court from the plaintiff and
remitted to the treasury. It is 10 times the actual Stamp Duty payable. In
view of proviso (a) to Section 35 of the Indian Stamp Act, 1899, the defect
qua deficit stamp in Ex-A.1 has been cured [See Chilakuri Gangulappa
-vs- Revenue Divisional Officer, reported in (2001) 4 SCC 197].
Registration
14. Ex-A.1 - Sale Agreement is dated January 17, 2007, that is
to say before the commencement of the Registration (Tamil Nadu
Amendment) Act, 2012 [Tamil Nadu Act No. 29 of 2012]; the Act came
into effect from December 1, 2012. Hence, Ex-A.1 is not a document of
which registration is mandatory. Notably, even after the commencement of
the aforesaid Act, an unregistered sale agreement affecting immovable
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property is admissible in evidence for the purpose of enforcing specific
performance under Chapter II of the ‘Specific Relief Act, 1963’ [‘S.R.
Act’ for short] in view of the proviso to Section 49 of the Registration Act,
1908 [See Hemalatha’s Case (supra)].
Whether Ex-A.1 is hit by Section 15 (1) (a) of the S.R. Act?
15. The plaintiff has not signed Ex-A.1. To be noted, Ex-A.1
is the original of the Sale Agreement dated January 17, 2007. From a bare
reading of Ex-A.1 (infra), it would be crystal clear that the first defendant
signed and executed Ex-A.1 in favour of the plaintiff and handed it over to
the plaintiff. Under Section 15 (1) (a) of the S.R. Act, it is sufficient if the
party, against whom the contract is sought to be enforced, has signed it.
Hence, the Suit framed based on Ex-A.1, which is signed by the first
defendant (against whom it is sought by the plaintiff to be enforced), is not
hit by Section 15 (1) (a) and is maintainable [See Lakshmi Ammal’s
Case].
Execution of Ex-A.1
16. The plaintiff in his evidence as P.W.1 has deposed that on
January 17, 2007, the first defendant executed Ex-A.1 - Sale Agreement in
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his favour in the presence of three witnesses. Ex-A.1 is the original. One of
the witnesses, Thiru. Chandrasekaran was examined as P.W.2. To be
noted, the first defendant did not deny the execution of Ex-A.1 as well as
the receipt of advance amount of Rs.25,000/-. On the other hand, the first
defendant contends that the plaintiff spiked his drink in order to get Ex-A.1
executed. In other words, his contention is that Ex-A.1 was obtained under
undue influence when he was not in sound mind and therefore, it is void
under law. In view of the examination of P.W.2 on the side of the plaintiff,
the plaintiff has prima facie established the execution of Ex-A.1 and the
payment of advance money. Now the onus is upon the first defendant to
establish his defence theory.
17. First defendant in his evidence as D.W.1 has admitted that
on the date of execution of Ex-A.1, the plaintiff entered into Sale
Agreements with 4 of his close relatives / neighbouring land owners,
namely Chandrasekar, Kuppan, Masilamani and Mahalingam. In such a
scenario, first defendant could have very well examined at least any one of
them to prove his theory of spiked drink; but he has failed to do so.
According to the first defendant, on the day after executing Ex-A.1, his
sons and daughters intimated the plaintiff that the agreement is void for
lack of free consent, and even otherwise, the Suit Properties being joint
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family properties, the agreement would not bind upon their shares; the said
averment has also not been proved. Further case of the first defendant is
that, on such intimation, the plaintiff agreed to accept the advance amount
and directed to give the same to his friend - Pichandi, President of
Ariyapady Village, and accordingly, the advance amount was given to
Pichandi, but the same was later returned by Pichandi on the pretext that
his relationship with the plaintiff has become uncordial. The first
defendant has not taken any steps to prove this averment also. Though he
could have examined the said Pichandi, he did not. There is nothing on
record to show that the Suit Properties are joint family properties. On the
other hand, first defendant has admitted in his evidence as D.W.1 that the
Suit Properties were purchased by him out of his income from sheep
rearing. Hence, the theory of joint family properties has also not been
proved. In short, there is not even an iota of evidence available on record
in support of the defence theory.
18. At this juncture, it is useful to refer to a portion of
D.W.1’s evidence, which is as follows:
“. . . vdf;F ML nka;j;Jjhd; $Ptdk;. brhe;jkhf
ML th';fp tpUj;jp bra;J mjd; \yk; $Ptdk;
bra;J te;njd;. 1975y; fpiuak; bgw;nwd;.
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gp.th.rh.M.2 mog;gilapy; fpiuak; bgw;nwd;. ,e;j
brhj;ij Ml;oypUe;J te;j tUkhdj;ij bfhz;L
jhd; fpiuak; bgw;nwd;. gp.th.rh.M.3y; fz;l
brhj;ij fpiuak; bgw;nwd;. ML tpw;W te;j
brhj;ijf;bfhz;Ljhd; fpiuak; bgw;nwd;. vd;
bgz;fis fl;of;bfhLj;Jtpl;nld;. mjw;F ML
tpw;Wte;j tUkhdj;ijf;bfhz;L jhd; bra;njd;.
gp.th.rh.M.2y; fz;l xU mapl;lr;brhj;ija[k;/
gp.th.rh.M.3y; fz;l xU mapl;lr; brhj;ijjhd;
mf;hpbkd;l; nghl;nld;. . . . ”
19. This Court, on the basis of the evidence of D.W.1 coupled
with the dearth of evidence in support of the defence theory, has no
difficulty in concluding that the Suit Properties are separate properties and
that first defendant executed Ex-A.1 voluntarily.
Readiness and Willingness
20. In Ex-A.1, lands of extent of roughly 2 Acres in Survey
Nos.135/6 and 144/8 was agreed to be sold to the plaintiff by the first
defendant at the rate of Rs.1500/- per Cent within 60 days from the date of
execution of Ex-A.1. As per Ex-A.1, the period of performance is within
60 days from the execution of Ex-A.1. The plaintiff in his evidence as
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P.W.1, has deposed that only after the execution of Ex-A.1 he came to
know that the extent of the said lands is only 1 Acre 36 Cents. Further
deposed that, thereafter, he along with one Sampath and one Rajendran
approached the first defendant and offered to pay the balance sale
consideration for the 1 Acre 36 Cents alone instead of 2 Acres. But there is
no pre-suit notice in this case and neither the said Sampath nor the said
Rajendran has been examined on the side of the plaintiff to prove his
readiness and willingness to perform his part of the agreement during the
time period for performance. The Original Suit was filed on September 22,
2008, though within the period of limitation, almost 1 ½ years after the
expiration of the time period of performance. Willingness is as important
as readiness. Admittedly, the plaintiff has the wherewithal, but must also
prove his willingness for performance of his part of the agreement.
Needless to mention that the plaintiff has to be ready and willing to
perform his part of the agreement during the currency of the agreement as
well as during the Suit Proceedings completely. This Court is of the view
that the plaintiff has not proved his willingness to perform his part of the
agreement within the stipulated time for performance viz., 60 days
satisfactorily.
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21. The learned Counsel for the plaintiff would rely on
Motilal Jain’s Case, Thilagavathi’s Case and Padma’s Case (supra) in
this regard. There is no quarrel with the law laid down in those cases. But
they would not come to the aid of the plaintiff owing to the facts and
circumstances of the present case.
Whether Ex-A.1 is enforceable for the relief of specific performance?
22. At this point, it is useful to extract the description of
property of Ex-A.1 hereunder:
“brhj;J tptuk;
jpUtz;zhkiy khtl;lk; Muzp tl;lk;
Muzp rhh;gjpit nrh;e;j mhpag;gho fpuhkj;jpy;
tUk; g[Q;ir rh;nt vz; kw;Wk; $f;ge;jp 135/6/ 144/8
VGkiy epyj;jpw;Fk;/ re;jpunrfh; epyj;jpw;Fk; (bj)
nrfh;/ uhkfpU#;zd; epyj;jpw;F (nk) Fg;gd;
epyj;jpw;F (t) kfhyp';fk; khrpyhkzp re;jpunrfh;
epyj;jpw;F (fp) ,jw;F kj;jpapy; Rkhh; 2 Vf;fh; g[Q;ir
epyk; tpf;fpu mf;fpubkz;l;f;F cl;gl;lJ.”
23. Further, it is pertinent to extract hereunder the Plaint
description of property:
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“brhj;J tptuk;
jp.kiy khtl;lk;/ Muzp tl;lk;/ mhpag;gho
fpuhkj;jpy; g[Q;ir rh;nt vz;fs;
1) g[Q;ir rh;nt vz; 135/6 0.16.0 Vh;. jPh;it 0.4
2) g[Q;ir rh;nt vz; 144/8 0.39.0 Vh;. jPh;it 1.02”
24. In a Suit for specific performance, the Suit Property has to
be same as the property described in the agreement. The plaintiff cannot
describe anything different or contra to the property described in the
agreement and seek the relief of specific performance with respect to it. In
other words, in a Suit for specific performance, the Suit Properties must
match with the subject matter of the agreement. According to the plaintiff,
though the property described under Ex-A.1 is of an extent 2 Acre, on
enquiry with the concerned Village Administrative Officer, the plaintiff
came to know that only an extent of 1 Acre 36 Cents is available in the
Suit Survey numbers. Accordingly, he described the Suit Properties as
measuring 1 Acre 36 Cents, as opposed to the description of measuring 2
Acres in Ex-A.1. However, there is nothing on record to substantiate the
above contention of the plaintiff.
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25. Ex-B.1 is the Sale Deed allegedly pertaining to Item No.1
of the Suit Properties. Perusal of Ex-B.1 would show that it relates to
Survey No. 135/5 and other properties, but not Survey No. 135/6 which is
the Survey number of Item No.1 Suit Properties. Perusal of Ex-B.2 - Sale
Deed would show that it is a Sale Deed pertaining to Item No.2 as alleged.
Perusal of Ex-B.3 - Partition Deed would show that it does not pertain to
Survey No.135/6 (Item No.1), but to Survey No.135/3 and other
properties. In short, there is nothing on record to show the extent of Survey
No.135/6 and that it belongs to the first defendant. No document has been
produced, nor any witness has been examined. In the absence of proof, the
plaintiff cannot vary the extent of property mentioned in the agreement
while describing the same in the Suit description of property, and seek the
relief of specific performance. Only the Court has the power to direct
specific performance in respect of a lesser extent on consideration of the
facts and circumstances of the case.
26. At this juncture, this Court deems fit and proper to extract
the terms of Ex-A.1 hereunder:
“2007Mk; Mz;L $dthp 17e;njjp jpUtz;zhkiy
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khtl;lk; Muzp tl;lk; mhpag;gho
fpuhkj;jpypUf;Fk; enlr ft[z;lh; Fkhuh; rhkpehjd;
Mfpa ehd; ntY}h; khtl;lk; thyh$h jhYf;fh
uhzpg;ngl;il lt[d; uapy;nt epiyak; 3tJ
FWf;FbjUtpy; trpf;Fk; uh$nfhghy;ft[z;lh;
Fkhuh; R.S.nrfh; mth;fSf;F ehd; vd;
Rauh$pakhf rk;ghj;jp epyj;ij tpiyf;fpiuak; ngrp
Kot[ bra;j +gha; xU brz;l; tpiy +. 1500f;F
vGj;jhy; +gha; Mapuj;J Ie;J E}W vd Kot[
bra;J Rkhh; 2 Vf;fh; (g[Qi ; ra epyk;) epyj;jpd;
rhh;ghf ,d;W njjpapy; Kd; gzkhf +gha;
25/000f;F vGj;jhy; +gha; ,Ug;gj;J Ie;J Mapuk;
bgw;Wf;bfhz;nld;. kPjp gzk; ,d;WKjy; 60
ehl;fSf;Fs; brYj;jp j';fs; bgahpy; gjpt[ bra;J
bfhLf;f rk;ge;jkhf gjpt[ bra;a kWj;jhy; fl;oa
ml;thd;!; bjhif ,ul;og;ghf bfhLf;f
rk;kjpf;fpnwd;. mJnghy; ePh; jtWk; gl;rj;jpy;
fl;oa ml;thd;!; bjhif ,Hf;f nehpLk;.
,e;jgof;F vd; KG kd rk;gj;jpcld;
vGjpf;bfhLj;j tpf;fpu mf;fpubkz;l; ,Jnt MFk;.”
(Emphasis supplied)
27. Bare reading of Ex-A.1 would show that if the plaintiff
fails to perform his part of the agreement within the duration of
performance viz., 60 days from the date of execution, the consequence is
forfeiture of the advance money by the plaintiff. On the other hand, if the
first defendant fails to perform his part of the contract within the duration
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of performance, the consequence is that he’ll be bound to repay two times
the advance amount as penalty. As per the terms of Ex-A.1, there is no
remedy of execution of Sale Deed in favour of the plaintiff through Court
available, in case of default on the side of the first defendant. In such a
scenario, this Court is of the view that in case of first defendant’s default,
the remedy available to the plaintiff is only to recover two times the
advance amount from first defendant as per the terms of Ex-A.1. Only that
remedy can be enforced under the S.R. Act by the plaintiff, provided he
inter alia proves his readiness and willingness to perform his part of the
agreement throughout up to the date of decree. In this case, as narrated
supra, the plaintiff has not satisfactorily proved his willingness to perform
his part of the agreement during the period of performance. Hence, the
plaintiff is not entitled to any relief of specific performance, be it either the
execution of Sale Deed as prayed for, or the return of two times the
advance amount as per the terms of Ex-A.1.
28. However, the first defendant has admitted the receipt of
Rs.25,000/- as advance money. If the plaintiff is not entitled to the
alternate relief of return of advance money, it would be unjust enrichment.
Hence, this Court is of the view that the first defendant shall return the
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advance money viz., Rs.25,000/- along with interest at the rate of 12%
from the date of Suit till the date of this Judgment.
29. Perusal of records show that the plaintiff has deposited
Rs.1,79,000/- as remaining sale consideration before Trial Court. He shall
be entitled to withdraw the same with accrued interest, if any thereon. It
appears that that the first defendant has also deposited a sum of
Rs.25,000/- before the Trial Court. If so, he shall not be permitted to
withdraw the same (including accrued interest if any thereon) until
satisfaction of the relief of return of advance amount granted by this Court
in favour of the plaintiff.
Conclusion:
30. In view of the foregoing narrative, this Court is of the
view that the plaintiff has not proved his willingness satisfactorily; that the
First Appellate Court rightly exercised its discretionary power, allowed the
appeal and dismissed the Suit; that Ex-A.1 is a proper Sale Agreement;
that the First Appellate Court is not justifiable in its finding that the Suit
Properties are ancestral properties of the first defendant. The Substantial
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Questions of Law are answered accordingly.
31. Resultantly, the Second Appeal is partly-allowed with
costs in the following terms:
(a) As narrated above, the plaintiff is entitled to
return of the advance money viz., Rs.25,000/-
(Rupees Twenty Five Thousand only), along
with simple interest at the rate of 12% from the
date of Suit till the date of this Judgment and
post decree interest at the rate of 6% per
annum;
(b) Connected Civil Miscellaneous Petition viz.,
C.M.P.No.17999 of 2018 was already
dismissed on November 20, 2018. However,
erroneously it was listed along with this
Second Appeal as a connected matter as if it is
alive. Registry is directed to make necessary
entries in the records concerned.
05 / 11 / 2024
Index : Yes
Speaking Order : Yes
Neutral Citation : Yes
https://www.mhc.tn.gov.in/judis
TK
R. SAKTHIVEL, J.
TK
To
1.The Additional District Court
(Fast Track Court)
Arni, Tiruvannamalai District.
2.The Subordinate Court
Arni, Tiruvannamalai District.
PRE-DELIVERY JUDGMENT MADE IN
S.A.NO.594 OF 2018
05 / 11 / 2024
https://www.mhc.tn.gov.in/judis
